It’s still plain discrimination

I’m always skeptical when the reasoning behind a course of action changes over time. Once the justification for invading Iraq became spreading democracy, for example, the flimsy argument about relieving Saddam Hussein of his elusive weapons of mass destruction became nonsense.

And when we allowed the Iraqi elections to happen without the participation of the minority Sunnis, the “spreading democracy” thing became equally ridiculous. More and more, it seemed like President Bush wanted to remove Saddam from power because he just didn’t like the guy.

Closer to home, the reasoning behind the unprecedented amendment to our state Constitution to take the right to marry away from same-sex couples has recently changed, causing me to question the true motive behind the statewide shame that was Proposition 8.

Last week, U.S. District Chief Judge Vaughn Walker refused to throw out the federal lawsuit that challenges Prop. 8 as unconstitutional and set a date for trial in January. This is great news for people who believe in marriage equality, regular equality, due process, and the rule of law because this case raises a fundamental issue that can only be addressed on the federal level. The United States Supreme Court needs to decide once and for all that gay people are a protected class and discriminating against someone because of his or her sexual orientation is a federal crime.

I was ashamed of my adopted home state for passing Prop. 8 in the first place, so I’m happy that we will be able to redeem ourselves by having a California case set the precedent for the rest of the country. We have Judge Walker to thank for that because in his ruling he not only allowed the case to move forward, he also said the other side (an organization known as Protect Marriage) has to present evidence of actual harm to a state interest if same-sex couples were allowed to marry. Keeping in mind that the justifications for passing Prop. 8 have ranged from protecting parents’ interests in controlling what their kids are being taught in school (something that was proven never to be in jeopardy) to the argument that the organization’s lawyer, Charles Cooper, tried to make to Judge Walker (protecting the state’s interest in promoting “naturally procreative relationships”), it was a perfectly reasonable thing for the Judge to do.

Walker asked, “What is the harm to the procreation purpose you outlined of allowing same-sex couples to get married?”

“My answer is, I don’t know. I don’t know,” Cooper replied. Realizing he may have just totally undermined his position, he said that the question wasn’t whether there is proof that same-sex marriages threaten those between men and women, but whether “the state is entitled, when dealing with radical proposals to make changes to bedrock institutions such as this … to take a wait and see attitude.” He went on to say, “There are things we can’t know, that’s my point. The people of California are entitled to step back and let the experiment unfold in Massachusetts and other places, to see whether our concerns about the health of marital unions have either been confirmed or perhaps they have been completely assuaged.”

In other words, even though Protect Marriage could be completely wrong about any harm that might come as a result of allowing same-sex couples to retain the right to marry, we should be able to discriminate against gay Californians by taking away that right until we know for sure

That wasn’t a compelling argument for Judge Walker who asked, “Since when do Constitutional rights rest on the proof of no harm?” I think he rightly suspects that the evolving, legally shaky justifications for passing Prop. 8 are a smokescreen. So, to prove they aren’t motivated by anti-gay bias, he has ordered Protect Marriage to return with some kind of evidence of what, exactly, they would be protecting marriage from. I can’t wait to see what they come up with.

Blatant lies are hard to defend and impossible to support — that’s part of the reason why we will never hear anyone from the second Bush administration make a serious effort to justify invading Iraq. Unfortunately for an attorney like Cooper, defending and supporting a lie is his job. And if you notice, he couldn’t do it. That’s because the coalition of conservative political and religious organizations he works for spent $40 million to get Prop. 8 passed for the simple reason that they don’t think gay Californians should have the same rights as the rest of us — and they’re using any excuse they can find to try to justify what they’ve done.

They say they’re “protecting marriage,” but it’s still discrimination and it’s still wrong.

Kenny Mack is a multi-platform content provider with four-quadrant crossover appeal who thinks it’s impossible to watch Tom Hanks and Antonio Banderas in “Philadelphia” and still oppose same-sex marriage. His past columns are archived at www.ifyoumissedit.com and he can be reached at kennymack@gmail.com